Northwestern University School of Law Public Law and Legal Theory Papers Year 2001 Paper 39 Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism Annelise Riles∗ ∗Cornell University - School of Law This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commer- cially reproduced without the permission of the copyright holder. http://law.bepress.com/nwwps-plltp/art39 Copyright c 2001 by the author. Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism Annelise Riles Abstract This article explores the productive uses of amateurism in comparative law through a close reading of the life and work of John Henry Wigmore, the founder of the American tradition of comparative law who first came to the subject as a young missionary for the Langdellian style of American legal education in turn-of-the- century Japan. Drawing on anthropological and linguistic theory, the article ex- plains amateurism as a post-Realist epithet for formalism. It seeks to counter the received view of the discipline as a pure product of American and European critiques of legal classicism by demonstrating how Wigmore’s turn to the perfor- mative dimensions of legal formalism, at a moment when formalism found itself under Realist attack, provided a sustaining vision of the discipline. The power and creativity of formalist performance, as well as its limitations and even dangers, as deployed by Wigmore, raise questions relevant beyond comparative law about the aesthetic dimensions of American formalism. 1 Chapter 5 Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism Annelise Riles* One of the recurring complaints about comparative law is that it is amateuristic. It is not a new complaint. For decades, now, the same critiques have been heard and still, the old methods--and the old critiques--persist. Amateurism within the academy is always met with a certain degree of unease. One common explanation presents amateurism, like popularism, as the effect of another era with its own problems and paradigms. Amateurism, in this view, is a feature of the pre-modernist past.1 The persistence of * I am grateful to Jane Campion, Aaron Kirk and Beth Olds for archival research, and to Joann Thompson for help in preparing the manuscript. I thank Hitoshi Aoki, Juro Iwatani, David Kennedy, Hiro Miyazaki, William Novak, Mathias Reimann for many helpful comments on this paper. 1 In this view, what looks to us now as amateuristic scholarship was in fact scholarship tailored for the evolutionary ideas that dominated the academy prior to the introduction of modernist social scientific paradigms. See, e.g., Marilyn Strathern, Out of Context: The Persuasive Fictions of Anthropology, Hosted by The Berkeley Electronic Press 2 amateurism in late twentieth century comparative law, long after the infusion of modern social scientific paradigms and methods into other fields of legal scholarship, then, is treated as something of an embarrassment. And yet, alongside other disciplines specializing in comparison from anthropology to comparative literature, amateurism is perhaps comparative law’s defining methodological trait. This essay began with a quite naïve professionalizing ambition for our amateuristic discipline and an equally naïve interest in one of our discipline’s greatest promoters, John Henry Wigmore. Intrigued by Wigmore’s three-year stay in Japan and of his work toward the translation and editing of Tokugawa Era2 statutes and case law, I was interested to learn how a young legal scholar encountered a society which, in his own understanding, was entirely foreign to him, and how the experience might have shaped his work as a comparativist. One of the dogmas of modern relativism is that the encounter with difference through the extended experience of a distant society and its legal system 28 CURRENT ANTHROPOLOGY 251 (1987). For my own views on modernism in comparative law, see Annelise Riles, Wigmore’s Treasure Box: Comparative Law in the Era of Information, 40 HARV. INT’L. L.J. 221 (1999). 2 The Tokugawa Era (properly called the Edo Period, 1603 - 1867) refers to the period during which Japan, ruled by the Tokugawa family, was closed to outside influences. http://law.bepress.com/nwwps-plltp/art39 3 changes the person as well as the scholar; that the personal experience of difference directs and refocuses the theoretical project. From this standpoint, Wigmore’s extended stay in a non-European country where he learned the language and engaged in serious long-term research might have provided a model from within the tradition for a more rigorous, less amateuristic, comparative law. However, an inquiry into Wigmore’s encounter with Japanese “custom” complicates the familiar trope of the scholar changed by travel to distant places and the encounter with things strange and foreign there. Not only did Wigmore emerge from his sojourn in Japan with most of the same views with which he began, but there was much that I found troubling about both the content and the genre in which those views found expression. I came to accept that Wigmore was an ordinary person and scholar, very much a product of his time and social milieu, with some extraordinary abilities, interests and commitments--we might call them professional hobbies--who produced some scattered but remarkable achievements. More importantly, I came to accept the necessity of rethinking my own ideas about amateurism and related professionalizing ambitions. John Henry Wigmore, Professor and later Dean of Northwestern University School of Law, was the quintessential establishment figure, and he Hosted by The Berkeley Electronic Press 4 worked hard at it. He was the sort of dean who was adored by alumni,3 the sort of scholar whose ideal audience was the local bar association, a man who belonged to every club and society, and who meticulously clipped every reference to his activities in the most trivial of newsletters.4 Although he has been called the father of American comparative law for his work in introducing the discipline to the American academy,5 his work is rarely read today. In his time, as in retrospect, he was regarded as an eclectic, free- thinking, exceptionally energetic but somewhat distracted scholar whose 3 The Northwestern Alumni newsletter records an instance in which 400 alumni gathered, and banged on tables as they sang, Oh! Wigmore, Dean Wigmore, You’re a leader who is tried and true, Oh! Wigmore, Dean Wigmore, Old Northwestern Should Be Proud Of You. John H. Wigmore Honored by “World,” ALUMNI NEWS, NORTHWESTERN UNIVERSITY (January 1930). 4 See, e.g., Colonel Wigmore Honored by Japan, THE DISCUS, Dec. 1935. (On file at Northwestern University Library). 5 JEROME HALL, COMPARATIVE LAW AND SOCIAL THEORY 10 (1963). http://law.bepress.com/nwwps-plltp/art39 5 contribution lay more in his popularization of comparative and foreign law than in the formulation of new paradigms or ideas.6 6 The reviewer of Wigmore’s Panorama of the World’s Legal Systems for the Yale Law Journal, for example, wrote: If Dean Wigmore’s primary aim is to give the general reader a series of interesting, but necessarily rapid and incomplete, pictures of the historical development of the sixteen legal systems of the world then he has undoubtedly been successful. Beautifully printed on excellent paper and enlivened by over five hundred illustrations the books are a pleasure to the eye. These “impressionistic” sketches, full of pleasant gossipy bits and occasional good stories, are particularly easy reading for they do not attempt to deal with any general ideas or principles. If, however, this work is intended as an introduction to the subject of comparative law, then we are doubtful whether it will accomplish its purpose. After having enjoyed the elaborately colored illustrations of the Great Pyramid, the Hanging Gardens of Babylon, the Parthenon, and the Colossus at Rhodes, it may seem ungracious on the part of the reviewer to disagree with Dean Wigmore’s view that the pictorial method is of practical value in expounding the science of the Hosted by The Berkeley Electronic Press 6 \insert figure 1 here\ Wigmore’s personal blend of idealism and complacency in his life and scholarship might serve as an apt metaphor for the character of our discipline. In his own time, Wigmore’s personal views seemed at once revolutionary and reactionary. He was nominated to the World Court for his rare familiarity with foreign law and his visionary commitment to international institutions, but his nomination was later derailed because of his hostility to pacifists and leftists during World War I.7 He took strong public stances on controversial issues, law. A student whose zeal must be stimulated in this way, can hardly be worth teaching. A. L. Goodhart, Book Review, 38 YALE L.J. 554, 554-55 (1929). See also Theodore Pluckett, Book Review, 42 HARV. L. REV. 587 (1929). 7 For an example of this hostility, see John H. Wigmore, J.H. Wigmore Answers Frankfurter Attack on Sacco-Vanzetti Verdict: A Fair Trial-Facts as Well as Law Reviewed by Supreme Court, BOSTON EVENING TRANSCRIPT, April 25, 1927; Felix Frankfurter, Prof. Frankfurter Replies to Dean Wigmore, THE BOSTON EVENING TRANSCRIPT, April 26, 1927; John H. Wigmore, Editorial, THE BOSTON HERALD, May 10, 1927; Felix Frankfurter, Mr. Frankfurter’s Reply, THE BOSTON HERALD, May 11, 1927. Roscoe Pound described Wigmore’s attack on Frankfurter in this exchange as “a disgrace to legal scholarship.” DAVID WIGDOR, ROSCOE POUND: PHILOSPHER OF LAW 250 http://law.bepress.com/nwwps-plltp/art39 7 and yet he knew how to cut himself off from an unpopular position when necessary.8 In his letter in support of Wigmore’s candidacy for the World Court, Benjamin Cardozo put it in flattering but double-edged terms: “He has (1974).